EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 20190/92
C.R.
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 27 June 1994)
TABLE OF CONTENTS
page
I. INTRODUCTION
(paras. 1-18) . . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-13). . . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 14-18) . . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 19-41). . . . . . . . . . . . . . . . . . . . . . . . 3
A. Particular circumstances of the case
(paras. 19-29) . . . . . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law
(paras. 30-41) . . . . . . . . . . . . . . . . . . . . . 5
III. OPINION OF THE COMMISSION
(paras. 42-63). . . . . . . . . . . . . . . . . . . . . . . . 9
A. Complaint declared admissible
(para. 42) . . . . . . . . . . . . . . . . . . . . . . . 9
B. Point at issue
(para. 43) . . . . . . . . . . . . . . . . . . . . . . . 9
C. Article 7 of the Convention
(para. 44-62). . . . . . . . . . . . . . . . . . . . . . 9
1. General considerations
(paras. 45-50) . . . . . . . . . . . . . . . . . . 9
2. Application to the present case
(paras.51-62). . . . . . . . . . . . . . . . . . .10
CONCLUSION
(para. 63). . . . . . . . . . . . . . . . . . . . . . . . . .12
CONCURRING OPINION OF MRS. J. LIDDY . . . . . . . . . . . . . . . .13
DISSENTING OPINION OF MR. L. LOUCAIDES
JOINED BY MR. M.A. NOWICKI. . . . . . . . . . . . . . . . . . . . .15
OPINION DISSIDENTE DE M. I. BÉKÉS . . . . . . . . . . . . . . . . .17
APPENDIX I HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .15
APPENDIX II DECISION ON ADMISSIBILITY. . . . . . . . . . . . .16
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is C.R., a British citizen born in 1952 and
resident in Leicester. He is represented by Mr. Peter Snow, honorary
legal officer of the Campaign for Justice in Divorce.
3. The application is directed against the United Kingdom. The
respondent Government are represented by Mr. Huw Llewellyn as Agent,
from the Foreign and Commonwealth Office.
4. The case concerns the complaint of the applicant that he was
convicted in respect of conduct, namely the attempted rape of his wife,
which at the relevant time allegedly did not constitute a criminal
offence. It raises issues under Article 7 of the Convention.
B. The proceedings
5. The application was introduced on 31 March 1992 and registered
on 19 June 1992.
6. On 12 October 1992, the Commission decided to communicate the
application to the respondent Government for their written observations
on the admissibility and merits of the complaint raised under Article 7
of the Convention.
7. The Government submitted their written observations on
29 January 1993. The applicant submitted his written observations in
reply on 24 March 1993.
8. On 28 June 1993, the Commission decided to invite the parties to
an oral hearing on the admissibility and merits.
9. At the hearing which was held on 14 January 1994, the Government
were represented by Mr. Huw Llewellyn as Agent, Mr. Alan Moses Q.C.,
Counsel and Miss Waplington and Mr. Dawson as Advisers. The
applicant was represented by Mr. Peter Snow, legal officer and
Mr. R. Guthrie, assistant.
10. On 14 January 1994, the Commission declared admissible the
complaint under Article 7 of the Convention. The remainder of the
application was declared inadmissible.
11. The parties were then invited to submit any additional
observations on the merits of the application.
12. On 21 and 24 March 1994, the applicant submitted further
observations.
13. After declaring the case partially admissible, the Commission,
acting in accordance with Article 28 para. 1 (b) of the Convention,
placed itself at the disposal of the parties with a view to securing
a friendly settlement of the case. In the light of the parties'
reactions, the Commission now finds that there is no basis on which a
friendly settlement can be effected.
C. The present Report
14. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
H.G. SCHERMERS
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
15. The text of the Report was adopted by the Commission on
27 June 1994 and is now transmitted to the Committee of Ministers in
accordance with Article 31 para. 2 of the Convention.
16. The purpose of the Report, pursuant to Article 31 para. 1 of the
Convention, is
1) to establish the facts, and
2) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
17. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
18. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. Particular circumstances of the case
19. The facts, as summarised by the Court of Appeal in the
applicant's case, are accepted by both parties.
20. The applicant married his wife on 11 August 1984. They had one
son, who was born in 1985. On 11 November 1987 the parties separated
for a period of about two weeks before becoming reconciled.
21. On 21 October 1989, as a result of further matrimonial
difficulties, the wife left the matrimonial home with their son and
returned to live with her parents. She had by this time already
consulted solicitors regarding her matrimonial affairs and had left a
letter for the applicant in which she informed him that she intended
to petition for divorce. However no legal proceedings had been taken
by her before the incident took place which gave rise to criminal
proceedings. The applicant had on 23 October 1989 spoken to his wife
by telephone indicating that it was his intention also to "see about
a divorce".
22. Shortly before 21.00 on 12 November 1989, 22 days after the wife
had returned to live with her parents, and while the parents were out,
the applicant forced his way into the parents' house and attempted to
have sexual intercourse with the wife against her will. In the course
of that attempt he assaulted her, in particular by squeezing her neck
with both hands.
23. The applicant was charged with attempted rape and assault
occasioning actual bodily harm. At his trial before the Leicester
Crown Court on 30 July 1990 it was submitted that the charge of rape
was one which was not known to the law by reason of the fact that the
applicant was the husband of the alleged victim. The submission was
based on the pronouncement of the common law made by Sir Matthew Hale
in his "History of the Pleas of the Crown", p. 629, published in 1736:
"But the husband cannot be guilty of rape committed by himself
upon his lawful wife, for by their mutual matrimonial consent and
contract the wife hath given up herself in this kind unto her
husband, which she cannot retract."
24. The trial judge, Owen J., had ruled that the charge could go to
the jury. He commented that he found it hard to believe that it was
ever the common law that a husband was in effect entitled to beat his
wife into submission to sexual intercourse. He considered however, that
there was sufficient evidence to indicate an implied agreement to a
separation and a withdrawal of consent which would bring the case
outside the alleged marital immunity (see Relevant domestic law and
practice paras. 34). He also considered that the common law recognised
an exception to the concept of marital immunity where there has been
a withdrawal of either party from cohabitation, accompanied by a clear
indication that consent to sexual intercourse had been terminated, and
that there was again sufficient evidence to indicate that this
exception applied in this case.
25. The applicant then pleaded guilty to attempted rape and assault
occasioning actual bodily harm, and was sentenced to three years'
imprisonment. He appealed.
26. The Court of Appeal held on 14 March 1991 as follows:
"Since the rule that a husband could not be guilty of raping his
wife if he forced her to have sexual intercourse against her will
was an anachronistic and offensive common law fiction which no
longer represented the position of a wife in present-day society,
it should no longer be applied. Instead, the principle to be
applied was that a rapist remained a rapist subject to the
criminal law irrespective of his relationship with his victim.
The charge of rape had therefore properly been left to the jury.
The appeal would accordingly be dismissed."
27. Even if the principle had not been ineffective, the Court stated
that where as in that case a wife had withdrawn from cohabitation in
such a way as to make it clear to the husband that the marriage was at
end as far as she was concerned the husband's immunity would be lost.
28. The Court of Appeal's decision was unanimously upheld by the
House of Lords on 23 October 1991. It considered that Sir Matthew
Hale's common law proposition could not preclude the application of
section 1 of the Sexual Offences (Amendment) Act 1976 concerning the
offence of rape.
29. The House of Lords' judgment was summarised by a Times Law Report
dated 24 October 1991 as follows:
"For over 150 years after the publication of Hale's work there
appeared to have been no reported case in which judicial
consideration was given to this proposition. It may be taken
that the proposition was generally regarded as an accurate
statement of the common law of England.
The common law was however capable of evolving in the light of
changing social, economic and cultural developments. Hale's
proposition reflected the state of affairs in those respects at
the time it was enunciated. Since then the status of women and
particularly of married women had changed out of all recognition.
Apart from property matters and the availability of matrimonial
remedies one of the most important changes was that marriage was
in modern times regarded as a partnership of equals and no longer
one in which the wife was the subservient chattel of the husband.
Hale's proposition involved that by marriage a wife gave her
irrevocable consent to sexual intercourse with her husband under
all circumstances and irrespective of the state of her health or
how she happened to be feeling at the time. In modern times any
reasonable person had to regard that conception as quite
unacceptable.
The position was that part of Hale's proposition had been
departed from in a series of decided cases. On the ground of
principle there was no good reason why the whole proposition of
'marital exemption' to rape should not be held inapplicable in
modern times.
The only question was whether section 1 (1) of the 1976 Act
presented an insuperable obstacle to that sensible course. The
argument was that 'unlawful' in that subsection meant outside the
bond of marriage.
That was not the most natural meaning of the word which normally
described something which was contrary to some law or enactment
or was done without lawful justification or excuse. Certainly
in modern times sexual intercourse outside marriage would not
ordinarily be described as unlawful.
If the subsection proceeded on the basis that a woman on marriage
gave a general consent to sexual intercourse there could be no
question of intercourse with her by her husband being without
consent. There would thus be no point in enacting that only
intercourse without consent outside marriage was to constitute
rape.
There was another important context to section 1 (1), namely the
existence of the exceptions to the marital exemption established
by cases decided before the Act was passed.
Sexual intercourse in any of the cases covered by the exceptions
still took place within the bond of marriage. So if 'unlawful'
in the subsection meant 'outside the bond of marriage' it
followed that sexual intercourse in a case which fell within the
exceptions was not covered by the definition of rape not-
withstanding that it was not consented to by the wife.
That involved that the exceptions had been impliedly abolished.
If the intention of Parliament was to abolish the exceptions it
would have been expected to do so expressly and it was in fact
inconceivable Parliament should have had such an intention.
In order that the exceptions might be preserved it would be
necessary to construe 'unlawfully' so as to give it a meaning
unique to that particular subsection and if the mind of the
draughtsman has been directed to the existence of the exceptions
he would surely have dealt with them specifically and not in such
an oblique fashion.
The fact was it was clearly unlawful to have sexual intercourse
with any woman without her consent and that the use of the word
in the subsection added nothing. There were no rational grounds
for putting the suggested gloss on the word and it should be
treated as mere surplusage in the enactment.
Section 1 (1) of 1976 Act presented no obstacle to the House
declaring that in modern times the supposed marital exemption in
rape formed no part of the law of England."
B. Relevant domestic law and practice
Common law
30. Until the applicant's case the English courts, on the few
occasions that they were confronted with the issue whether directly or
indirectly, had always recognised at least some form of immunity as
attaching to a husband from any charge of rape or attempted rape by
reason of a notional or fictional consent to intercourse deemed to have
been given by the wife on marriage. The eighteenth century proposition
of Sir Matthew Hale quoted above (para. 23) has been upheld until
recently, for example in the case of R. Kowalski (1987, 86, Cr. App.
R 339), which concerned the question of whether or not a wife had
impliedly consented to acts which if performed against her consent
would amount to an indecent assault. Ian Kennedy J. giving the
judgment of the court stated, obiter dicta,
"It is clear, well-settled and ancient law that a man cannot, as
actor, be guilty of rape upon his wife"
and he went on to say that that principle was
"dependent upon the implied consent to sexual intercourse which
arises from the married state and which continues until that
consent is put aside by decree nisi, by a separation order or,
in certain circumstances, by a separation agreement".
31. In another example, Lord Justice O'Connor in the R. v. Roberts
case (1986 CLR 188) stated:
"The status of marriage involves that the woman has given her
consent to her husband having intercourse with her during the
subsistence of the marriage ... she cannot unilaterally withdraw
it."
32. On 20 November 1990, in R.v. J. (1991 1 AER 759),
Mr Justice Rougier upheld the general common law rule, considering :
"...there is an important general principle to be considered
here, and that is that the law, especially the criminal law,
should be clear so that a man may know where he stands in
relation to it. I am not being so fanciful as to suppose that
this defendant carefully considered the authorities and took
Counsel's advice before behaving as alleges, but the basic
principle extends a long way beyond the bounds of this case and
should operate to prevent a man being convicted by means of
decisions of the law ex post facto".
33. In its Working Paper 116 "Rape within Marriage" completed on
17 September 1990, the Law Commission stated:
"2.8 It is generally accepted that, subject to exceptions
(considered at paragraphs 2.12-2.26 below), a husband cannot be
convicted of raping his wife...Indeed there seems to be no
recorded prosecution before 1949 of a husband for raping his
wife...
"2.11 The immunity has given rise to a substantial body of law
about the particular cases in which the exemption does not apply.
The limits of this law are difficult to state with certainty.
Much of it rests on first instance decisions which have never
been comprehensively reviewed at appellate level..."
34. The Law Commission identified the following exceptions to a
husband's immunity:
- Where a court order has been made, in particular:
a. where an order of the court has been made which provides that
a wife should no longer be bound to cohabit with her husband
(Clarke 1949 33 Cr App R 216);
b. where there has been a decree of judicial separation or a
decree nisi of divorce on the ground that "between the
pronouncement of decree nisi and the obtaining of a decree
absolute a marriage subsists as a mere technicality" (O'Brien
1974 3 AER 663);
c. where a court has issued an injunction restraining the husband
from molesting the wife or the husband has given an undertaking
to the court that he will not molest her (Steele 1976 65 Cr App
R 22);
d. in the case of Roberts (1986 Crim LR 188), the Court of Appeal
found that where a non-molestation order of 2 months had been
made in favour of the wife her deemed consent to intercourse did
not revive on expiry of the order.
- where no court order has been made:
e. Lynskey J. observed, obiter, in Miller (1954 2 QB 282), that
a wife's consent would be revoked by an agreement to separate,
particularly if it contained a non-molestation clause;
f. Geoffrey Lane LJ stated , obiter, in Steele (loc. cit.) that
a separation agreement with a non-cohabitation clause would have
that effect.
35. The Law Commission noted that it was stated in Miller (loc. cit.)
and endorsed by the Court of Appeal in Steele (loc.cit) that lodging
a petition for divorce would not be sufficient.
36. The Law Commission referred also to the ruling by the trial judge
in the case of R. v. R.. where an implied agreement to separate was
considered sufficient to revoke the immunity and that even in the
absence of agreement, the withdrawal from cohabitation by either party
accompanied by a clear indication that consent to sexual intercourse
had been terminated, would operate to exclude the immunity. It found
this view difficult to reconcile with previous authorities and that it
appeared substantially to extend what had previously been thought to
be the law.
37. The Law Commission made, inter alia, the provisional proposal
that "the present marital immunity be abolished in all cases" (5.2)
which would be effected by legislation.
Sexual Offences (Amendment) Act 1976
38. Section 1 (1) of the Sexual Offences (Amendment) Act 1976
provides, in so far as it is material, as follows:
"For the purposes of section 1 of the Sexual Offences Act 1956
(which relates to rape) a man commits rape if
- (a) he has unlawful sexual intercourse with a woman who at
the time of the intercourse does not consent to it..."
The position in Scotland
39. An exemption was also enjoyed by a husband in respect of rape of
his wife under the applicable law in Scotland based on Hume's "Criminal
Law of Scotland" first published in 1797.
40. In two cases (HM Advocate v. Duffy 1983 SLT 7 and H.M. Advocate
v. Paxton 1985 SLT 96), the High Court of Justiciary held that the
exemption did not apply where the parties to a marriage were no longer
cohabiting.
41. Following those cases, the High Court proceeded to hold in S v.
H.M. Advocate (1989 SLT 469) that the fiction of implied consent and
a husband's immunity from a prosecution upon a charge of rape of his
wife no longer applied and that "the only question is whether or not
as a matter of fact the wife consented to the acts complained of".
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
42. The Commission has declared admissible the applicant's complaint
that he has been convicted in respect of conduct which at the relevant
time did not constitute a criminal offence.
B. Point at issue
43. The issue to be determined is whether there has been a violation
of Article 7 (Art. 7) of the Convention.
C. Article 7 (Art. 7) of the Convention
44. Article 7 (Art. 7) of the Convention provides as relevant:
"1. No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a
criminal offence under national or international law at the time
when it was committed...
2. This Article shall not prejudice the trial and punishment
of any person for any act or omission which, at the time when it
was committed, was criminal according to the general principles
of law recognised by civilised nations."
1. General considerations
45. Article 7 para. 1 (Art. 7-1) reflects the principle, found also
in other provisions of the Convention in the context of requirements
that interferences with or restrictions in the exercise of fundamental
rights must be "in accordance with law" or "prescribed by law", that
individuals should be able to regulate their conduct with reference to
the norms prevailing in the society in which they live. That generally
entails that the law must be adequately accessible - an individual must
have an indication of the legal rules applicable in a given case - and
he must be able to foresee the consequences of his actions, in
particular, to be able to avoid incurring the sanction of the criminal
law.
46. In the context of "prescribed by law" the Court set the standard
of foreseeability to that of reasonable certainty:
"...a norm cannot be regarded as a `law' unless it is formulated
with sufficient precision to enable the citizen to regulate his
conduct: he must be able - if need be with appropriate advice -
to foresee, to a degree that is reasonable in the circumstances,
the consequences which a given action may entail. Those
consequences need not be foreseeable with absolute certainty :
experience shows this to be unattainable. Again, whilst certainty
is highly desirable, it may bring in its train excessive rigidity
and the law must be able to keep pace with changing
circumstances. Accordingly, many laws are inevitably couched in
terms which, to a greater or lesser extent, are vague and whose
interpretation and application are questions of practice."
(Eur. Court H.R., the Sunday Times judgment of 26 April 1979,
Series A no. 30 p. 31, para. 49)
47. In a common law system, not only written statutes but also rules
of common or other customary law may provide sufficient legal basis for
the criminal convictions envisaged in Article 7 (Art. 7) of the
Convention.
48. Where law is developed by application and interpretation of
courts in a common law system, their law-making function must remain
within reasonable limits. Article 7 para. 1 (Art. 7-1) excludes that
any acts not previously punishable should be held by the courts to
entail criminal liability or that existing offences should be extended
to cover facts which previously did not clearly constitute a criminal
offences (see eg. No. 8710/79, Dec. 7.5.82, D.R. 28 p. 77).
49. It is however compatible with the requirements of Article 7
para. 1 (Art. 7-1) for the existing elements of an offence to be
clarified or adapted to new circumstances or developments in society
insofar as this can reasonably be brought under the original concept
of the offence. The constituent elements of an offence may not however
be essentially changed to the detriment of an accused and any
progressive development by way of interpretation must be reasonably
foreseeable to him with the assistance of appropriate legal advice if
necessary (see eg. Nos. 8710/79, loc. cit., 10505/83, Dec. 4.3.85,
D.R. 41 p. 178 and No. 13079/87, Dec. 6.3.87, D.R. 60 p. 256).
50. In a common law system therefore, the courts may exercise their
customary role of developing the law through cases but in doing so may
not exceed the bounds of reasonably foreseeable change.
2. Application to the present case
51. The applicant submits that his conviction for the attempted rape
of his wife concerned conduct which did not at the relevant time
constitute a criminal offence under United Kingdom law. He contends
that the general rule that a husband could not commit the offence of
rape against his wife was universally accepted until 1990. While
exceptions to this principle had developed, these were strictly limited
to circumstances where, for example, there had been a court order or
formal separation agreement. The facts of this case do not disclose
any mutual separation agreement between the applicant and his wife.
There was no authority for the proposition that a wife could
unilaterally withdraw her consent. Furthermore, in the applicant's
case, the Court of Appeal and the House of Lords acknowledged that they
were changing the law, not merely clarifying it. Accordingly, in the
applicant's submission, the courts went beyond reasonable
interpretation of the existing law and extended the definition of the
offence in such a way as to include facts which hitherto had not
constituted a criminal offence.
52. The Government submit that the applicant's conviction for the
attempted rape of his wife was in conformity with Article 7 (Art. 7)
of the Convention. By the relevant time, Hale's proposition that a
wife's consent to sexual intercourse was irrevocable was no longer good
law. English law did not therefore recognise any absolute immunity
conferred on a husband who had sexual intercourse with his wife without
her consent. There was, in their view, case-law indicating that a
husband could be guilty of raping his wife where, for example, a court
had issued a decree nisi of divorce or a non-molestation order; where
there was an agreement express or implied between the parties which
made it clear that the implied consent of the wife was revoked; and
where there had been a withdrawal of either party from cohabitation
accompanied by a clear indication that consent to sexual intercourse
had been terminated.
53. The Government contend that in the present case the facts
indicated that the applicant's wife had revoked her consent by mutual
agreement with the applicant. Even if the decisions of the courts were
based rather on the fact that a wife was able unilaterally to withdraw
her consent, this was a reasonable interpretation of the existing law
in the light of changing social circumstances and clarified the
existing elements of the offence.
54. The Commission recalls that the applicant was convicted of
attempted rape following an incident on 12 November 1989 in which he
had broken into his wife's parents' house, assaulted his wife and
attempted to force her to have sexual intercourse with him. His
submission that he could not be prosecuted for attempted rape since
husbands enjoyed an immunity in respect of their wives was rejected by
the trial judge and his appeal against his resulting conviction
rejected by the Court of Appeal and House of Lords.
55. The Commission does not find that the basic ingredients of the
offence of rape were thereby changed when the Court of Appeal, and
subsequently the House of Lords reviewed the application of Hale's
principle of marital immunity and declared in effect that the immunity
no longer applied. The offence continued to consist of unlawful sexual
intercourse with a woman without her consent as provided in the Sexual
Offences (Amendment) Act 1976. A purported immunity based on a
presumption as to one ingredient of the offence - consent - however
was definitively removed.
56. It is apparent from case-law of the courts, legal textbooks and
the Law Commission's examination of the state of the law that by 1989
the general immunity afforded to a husband in respect of prosecution
for rape of his wife had already been subject to a number of
exceptions. It was established that in certain circumstances a wife's
deemed consent would be considered as having been revoked: in
particular where a court order affecting the relationship of the
parties had been made or where the parties to a marriage had entered
into a separation agreement.
57. Further by 1989, the High Court of Justiciary in Scotland had
already come to the conclusion that a similar marital immunity was no
longer valid and that the only question was whether a wife consented
to the acts in question.
58. In the present case, the trial judge, when rejecting the
applicant's submission that marital immunity applied, doubted the
extent to which it could ever have been permissible under the common
law for a husband to beat his wife into having sexual intercourse with
him. In any event he considered that there was sufficient evidence to
indicate an implied agreement to a separation by the parties which
would bring the case outside the immunity. He also considered that the
common law recognised an exception to the concept of marital immunity
where there had been a withdrawal of either party from cohabitation,
accompanied by a clear indication that consent to sexual intercourse
had been terminated.
59. In light of the above, the Commission considers that by November
1989 there was significant doubt as to the validity of the alleged
marital immunity for rape. As stated by the Court of Appeal in the
applicant's case, lip service had been paid to the alleged general rule
while the courts at the same time increased the number of exceptions.
That there was uncertainty as to the width of the exceptions is
apparent from the Law Commission Working Paper examining the question.
60. The Commission finds that this was an area in which the law had
been subject to progressive development as courts increasingly found
Hale's notion of implied consent by a wife inapplicable to situations
where the ordinary relations created by marriage no longer subsisted.
While there was no express authority for the proposition that an
implied agreement of separation between husband or wife or unilateral
withdrawal of consent by the wife would bring a case outside the
marital immunity, the Commission takes the view that in the present
case where the applicant's wife had withdrawn from co-habitation and
there was de facto separation with the expressed intention of both to
seek a divorce, there was a basis on which it could be anticipated that
the courts could hold that the notional consent of the wife was no
longer to be implied. In particular, given the recognition by
contemporary society of women's equality of status with men in marriage
and outside it and of their autonomy over their own bodies, the
Commission considers that this adaptation in the application of the
offence of rape was reasonably foreseeable to an applicant with
appropriate legal advice.
61. The Commission is also of the opinion that it is inconceivable
that the applicant when he embarked on the course of conduct in
question could have held any genuine belief that it was lawful.
62. Consequently, the Commission finds that the judgments of the
domestic courts in the applicant's case did not go beyond legitimate
adaptation of the ingredients of a criminal offence to reflect the
social conditions of the time and that the applicant was not as a
result convicted of conduct which did not constitute a criminal offence
at the time at which it was committed.
CONCLUSION
63. The Commission concludes, by 14 votes to 3, that there has been
no violation of Article 7 para. 1 (Art. 7-1) of the Convention.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
(Or. English)
CONCURRING OPINION OF MRS. J. LIDDY
1. In 1984 the Criminal Law Revision Committee was of the view by
a narrow majority that there should be no change in the basic principle
whereby a husband was immune from any charge of rape by reason of a
fictional consent to intercourse deemed to have been given by the wife
on marriage. A minority was of the view that the law should be changed
so that in all marriages a husband could be convicted of rape, but the
Government did not act on this minority opinion and did not introduce
in Parliament a bill to amend the law. The majority and the minority
of the Criminal Law Revision Committee were apparently united in
recommending that an attempt be made to amend the law to enable a
prosecution to be brought for rape where a married couple were not
cohabiting, although they foresaw difficulties of definition and a
possibility of uncertainty. Again, no bill to amend the law even to
this limited extent was introduced in Parliament by the Government.
2. On 12 November 1989 the applicant attempted by force to have
sexual intercourse with his recently estranged wife at her parents'
home, which he had forced his way into. He was subsequently charged
with attempted rape and assault.
3. On 30 July 1990 the trial judge ruled that there were exceptions
to the immunity where there was (a) an implied agreement to separate
and (b) withdrawal from cohabitation accompanied by a clear indication
that consent to sexual intercourse had been terminated. Neither of
these exceptions had been indicated, even obiter, in earlier case-law.
The applicant was convicted of attempted rape and assault. He
appealed.
4. On 17 September 1990 the Law Commission reviewed the state of
case-law concerning exceptions to the immunity. It commented that the
trial court's ruling was difficult to reconcile with previous
authorities and that it appeared substantially to extend what had
previously been thought to be the law.
5. On 14 March 1991 the Court of Appeal in R. v. R. said that the
immunity should no longer be applied.
6. On 23 October 1991 the House of Lords in R. v. R. declared that
the immunity no longer formed part of the law. Having reviewed the
exceptions to the immunity established by case-law the House of Lords
said "Those cases illustrate the contortions to which judges have found
it necessary to resort in face of the fiction of implied consent to
sexual intercourse."
7. Article 7(1) excludes that any acts not previously punishable
should be held by the courts to entail criminal liability. On the
other hand, case-law may clarify the existing elements of the offence
and adapt them to new circumstances which can reasonably be brought
under the original concept of the offence (D.R. 28 p. 77).
8. In the present case the act of forcibly having sexual relations
with one's recently estranged wife had not previously been thought to
be unlawful, as is evidenced by the Law Commission's Report. The
applicant's conviction was ultimately based on the House of Lords
judgment sweeping away the immunity.
9. This judgment was not a clarification of the existing elements
of the offence of rape, but a fundamental change of the law. The
change may have been prompted by judicial impatience with the
legislature and professional reluctance to engage in further
"contortions" of the law, but its effect is to criminalise acts which
may have been performed years or decades before that judgment,
10. This reasoning would lead to a finding of a violation of
Article 7 (1), were it not for the fact that the Convention has to be
read as a whole. Article 17 states "Nothing in this Convention may be
interpreted as implying for any ... person any right to engage in any
activity or perform any act aimed at the destruction of any of the
rights and freedoms set forth herein or at their limitation to a
greater extent than is provided for in the Convention."
11. One of the rights guaranteed by the Convention is the right to
private life, including integrity of the person, and including the
right of a woman to effective measures by means of criminal law
provisions whereby there is deterrence against rape (X. and Y. v.
Netherlands, Series A, no. 91). This right was identified by the Court
as long ago as 1985.
12. In the case of Lawless v. Ireland (Series A, No. 3 p.45 para. 7)
the Court stated that "the purpose of Article 17, insofar as it refers
to groups or to individuals, is to make it impossible for them to
derive from the Convention a right to engage in any activity or perform
any act aimed at destroying any of the rights or freedoms set forth in
the Convention ... in the present case G. R. Lawless has not relied on
the Convention in order to justify or perform acts contrary to the
rights and freedoms recognised therein ..."
13. The same cannot be said of the present applicant. He is
indisputably seeking to rely on Article 7 to justify the act of
attempting to force his wife to have sexual intercourse with him in
1989, an act aimed at destroying her right to bodily integrity.
However, Article 17 precludes him from deriving from the Convention
justification for his conduct or a finding that the United Kingdom
authorities infringed his fundamental rights by punishing such conduct
after a fair trial.
(Or. English)
DISSENTING OPINION OF MR. L. LOUCAIDES
JOINED BY MR. M.A. NOWICKI
I am unable to agree with the majority that there has been no
violation of Article 7 (para. 1) of the Convention in this case.
I base my disagreement on the following reasons.
(a) Article 7 (para. 1) excludes that any act not previously
punishable shall be held by the courts to entail criminal liability or
that existing offences should be extended to cover facts which
previously clearly did not constitute a criminal offence. This implies
that constituent elements of an offence may not be essentially changed,
at least not to the detriment of the accused, by the case law of the
courts. Existing elements of the offence may be simply clarified and
adapted to new circumstances which can reasonably be brought under the
original concept of the offence.
(b) On 12 November 1989 the applicant attempted, by force, to
have sexual intercourse with his recently estranged wife at her
parents' home, into which he had forced his way. He was subsequently
charged with rape and assault.
(c) At the time of the applicant's act, for which he was later
on charged and convicted for rape, it was a clear and well-settled law
in England that a man cannot be guilty of rape upon his wife, he being
the actor, for the wife was considered in general unable to retract the
consent to sexual intercourse which was part of the contract of
marriage. This principle was set out in the main text books on English
criminal law and it has been repeatedly upheld by the English courts,
For example in the case of R. v. Kowalski (1987, 86, Cr, App. R 339),
Ian Kennedy J. giving the judgment of the court stated, obiter dicta,
"It is clear, well-settled and ancient law that a man cannot, as actor,
be guilty of rape upon his wife" and he went on to say that that
principle was
"dependent upon the implied consent to sexual intercourse which
arises from the married state and which continues until that
consent, is put aside by decree nisi, by a separation order or
in certain circumstances, by a separation agreement".
Also, Mr. Justice Rougier in R. v. J. in November 1990 found that
the accused in the case before him should not be convicted ex post
facto of rape of his wife.
The general immunity afforded to husbands in respect of
prosecution for rape of his wife has been subject to certain specified
exceptions, none of which was applicable to the facts of the present
case. That the English law on the subject in question was as set out
above is further evidenced by the reviews of the Law Commission
referred to in the Report of the Commission in this case.
(d) The legal basis for the conviction of the applicant is found
in the judgment of 23 October 1991 of the House of Lords in R. v. R.
In the judgment, the House of Lords has for the first time declared
that the immunity in question no longer formed part of the law because
it was an anachronistic and an offensive fiction which should be swept
away.
(e) I find that as a result of the above judgment, the law as
regards one of the existing elements of the offence of rape, i.e.,
consent, has been fundamentally changed to the applicant's detriment.
It was neither a clarification of the existing elements of the offence
in question, nor an adaptation of such elements to new circumstances
which could reasonably be brought under the original concept of the
offence. In sum, I believe that the House of Lords, by their judgment
in question, made criminal a conduct which was previously not
sanctioned by the criminal law.
The fact that a change of the law so as to remove the above-
mentioned immunity was necessary does not make any difference for the
purposes of the principle safeguarded under Article 7 para. 1 of the
Convention. Such change could have been effected through legislation.
A change through the case-law of the courts could not have been
reasonably foreseeable to the applicant even with the assistance of
legal advice and consequently, in my view, there has been a breach of
that Article in this case.
Before concluding, I would like to answer briefly the question
of the applicability of Article 17 raised by Mrs. J. Liddy in her
separate opinion. Article 17 states that "Nothing in this Convention
may be interpreted as implying for any ... person any right to engage
in any activity or perform any act aimed at the destruction of any of
the rights and freedoms set forth herein or at their limitation to a
greater extent than is provided for in the Convention." In my
opinion, Article 17 is intended to exclude the abuse of any of the
specific rights safeguarded by the Convention for any of the purposes
set out in the same Article. The applicant at the time of the
commission of the act for which he was found guilty of rape was not
purporting to exercise his rights under Article 7 (para. 1) of the
Convention. These rights only arose at the time of his conviction.
(Or. French)
OPINION DISSIDENTE DE M. I. BÉKÉS
Je ne partage pas l'avis de la majorité lorsqu'elle estime qu'il
n'y a pas eu violation de l'article 7 de la Convention.
Le requérant se plaint d'avoir été condamné pour tentative de
viol de sa femme alors qu'au moment de la commission des faits, ceux-ci
ne constituaient pas une infraction pénale en vertu du droit anglais.
S'agissant de la question de la légalité des infractions et des
peines, il importe de présenter les textes juridiques pertinents.
Aux termes de l'article 1 (1) de la loi anglaise de 1976 relative
aux infractions sexuelles; "un homme commet un viol si (a) il a des
relations sexuelles illégales avec une femme qui au moment de l'acte
n'est pas consentante ...". Deux notions je semblent essentielles :
l'absence de consentement et l'illégalité.
En vertu du droit coutumier (common law), qui en l'espèce résulte
de la proposition de Sir Matthew Hale publiée en 1736, le mari ne peut
être coupable de viol envers son épouse. En effet, selon ce droit, les
liens du mariage créent une présomption irréfragable de consentement
de la femme à son époux. Dès lors, celui-ci ne saurait être considéré
pénalement responsable d'aucun acte sexuel illégal envers sa femme.
Ce principle, qualifié d'"exemption matrimoniale de viol",
confère au mari une immunité pénale pour ce qui est de l'ensemble des
relations sexuelles qu'il entretient avec son épouse indépendamment du
consentement de celle-ci.
C'est tout au moins ainsi que j'interprète les règles du droit
anglais pertinentes dans cette affaire.
En l'espèce, pour condamner le requérant; la "House of Lords"
jugé qu'à l'époque des faits, il ressortait clairement des termes de
la loi de 1976 que toute relation sexuelle avec une femme non
consentante constituait un viol et donc une infraction pénale, et donc
que "l'exemption matrimoniale de viol" ne faisait plus partie
intégrante du droit anglais.
Notre Commission a estimé qu'en statuant de la sorte, les
juridictions anglaises n'avaient pas excédé leur devoir légitime de
clarification du droit pénal au regard des conditions sociales de
l'époque et qu'en conséquence, le requérant n'avait pas été condamné
pour une action qui au moment où elle avait été commise ne constituait
pas un crime.
Je pense pour ma part que les juridictions anglaises ont excédé
leur pouvoir d'interprétation du droit écrit. Certes, le droit
coutumier est par nature sujet à modification au regard notamment de
l'évolution des mentalités et des comportements, mais il n'en deneure
pas moins que l'on ne saurait lui substituer ex abrupto une règle du
droit écrit. En effet, pareille interprétation extensive de la loi
emporte une incertitude juridique pour le mari, incertitude que
l'évolution des moeurs ne saurait aucunement justifier.
A mon sens, la solution eut été de légiférer en excluant
expressément l'immunité pénale du mari en cas de relation sexuelle non
consenties par l'épouse. A défaut, j'estime que l'immunité pénale du
mari consacrée par la common law constituait à l'époque de la
commission des faits le règle de droit applicable au sens de
l'article 7 de la Convention et qu'en conséquence, les juridictions
anglaises ne pouvaient légitimement condamner le requérant pour le viol
de son épouse.
Il y a donc eu violation de l'article 7 de la Convention.
J'aimereais enfin ajouter, que s'il est vrai que d'un point de
vue moral cette règle coutumière est anachronique, il appartient
justement à notre Commission de distinguer la morale de l'exigence de
sécurité juridique des ressortissants des Etats parties. La présente
affaire lui donnait l'opporunité de se pencher sur cette question et
de poser des lignes directrices pour l'avenir. Je regrette que tel
n'en ait pas été le cas.
Appendix I
HISTORY OF THE PROCEEDINGS
Date Item
________________________________________________________________
31.03.92 Introduction of the application
19.06.92 Registration of the application
Examination of admissibility
12.10.92 Commission's decision to invite the parties to
submit observations on the admissibility and
merits
29.01.93 Government's observations
24.03.93 Applicant's reply
08.04.93 Commission's decision to grant the applicant
legal aid
28.06.93 Commission's decision to invite the parties to
an oral hearing
14.01.94 Hearing on admissibility and merits
14.01.94 Commission's decision to declare the application
admissible
Examination of the merits
14.01.94 Commission's deliberations
21.03.94 Applicant's observations on the merits
13.05.94 Consideration of the state of proceedings
27.06.94 Commission's deliberations on the merits, final
votes and adoption of the Report
Full & Egal Universal Law Academy